Skip to content


Thokchom Khoyon Singh Vs. Moirangmoyun Bira Singh and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantThokchom Khoyon Singh
RespondentMoirangmoyun Bira Singh and anr.
Excerpt:
- - because of this, the magistrate is invested with jurisdiction to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of the peace with regard to the subject-matter of the dispute......and finally decide the proceeding under section 145(6) of the cr. p.c. after he has attached the disputed land under section 146(1) of the code, considering the case to be one of emergency.2. in criminal revn. no. 3 of 1976, the petitioner before us was the first party and the respondent no. 1 the second party in the proceeding under section 145, cr. p.c. before the sub-divisional magistrate, bishenpur, which was initiated by the first party. the magistrate, after drawing up the proceeding passed the preliminary order under section 145(1) of the code on 9-5-74, and called upon the parties to put in their written statements on 30-5-74. as shown by the warrant of attachment signed by the magistrate, the disputed land was attached on 18-5-74. both the parties led evidence; the magistrate.....
Judgment:

N. Ibotombi Singh, J.

1. By this common judgment, we propose to dispose of these two Criminal Revisions, Criminal Revn. No. 3 of 1976 and Criminal Revn. No. 9 of 1976, in which a common question of law is involved, namely, whether the Magistrate has jurisdiction to continue and finally decide the proceeding under Section 145(6) of the Cr. P.C. after he has attached the disputed land under Section 146(1) of the Code, considering the case to be one of emergency.

2. In Criminal Revn. No. 3 of 1976, the petitioner before us was the first party and the respondent No. 1 the second party in the proceeding under Section 145, Cr. P.C. before the Sub-Divisional Magistrate, Bishenpur, which was initiated by the first party. The Magistrate, after drawing up the proceeding passed the preliminary order under Section 145(1) of the Code on 9-5-74, and called upon the parties to put in their written statements on 30-5-74. As shown by the warrant of attachment signed by the Magistrate, the disputed land was attached on 18-5-74. Both the parties led evidence; the Magistrate on the materials placed before him passed the final order under Section 145(6) of the Code, declaring the second party to be entitled to possession of the disputed land until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. The first party feeling aggrieved by the said order filed revision petition to the learned Sessions Judge, Manipur, and the learned Additional Sessions Judge, Manipur to whom the case, it appears, was transferred, accepted the revision taking the view that the Magistrate has no jurisdiction to continue and finally decide the proceeding under Section 145(6) of the Code after attachment of the disputed land under Section 146(1) of the Code. He did not consider the case on merits. The second party has come up in revision before us.

3. In Criminal Revn. No. 9 of 1976, the petitioner, Konjengbam Lamphel Singh, was the second party No. 1 and the respondent No. 2 the first party in the proceeding under Section 145 of the Cr. P.C., before the Sub-Divisional Magistrate, Imphal East. After drawing up a proceeding under Section 145, Cr. P.C., he passed the preliminary order under Section 145(1) of the Code, asked the parties to put in their respective written statements and attached the disputed land. The Magistrate, as in the other case, on the basis of the materials placed before him, passed the final order on 21-8-75 under Section 145(6) of the Code, declaring the second party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. The first party went in revision to the learned Sessions Judge, Manipur, who set aside the order of the Magistrate, on the authority of a decision of this Court in Amachou Singh v. Wahengbam Ongbi Kumari Devi Criminal Revn. No. 1 of 1975, holding that he has no jurisdiction to proceed with and dispose of the case declaring possession in favour of the second party after attachment of the disputed land under Section 146(1) of the Code. While quashing the order, the learned Sessions Judge also gave certain directions to the Magistrate as to how the matter should be proceeded further. The aggrieved party has come up similarly in revision before us. As a common question of law, as stated above, is involved in both the revisions, they are heard together,

4. We now proceed to consider the common question of law posed before us. There has been divergence of views on this question among different High Courts, even in the same High Court. One view is that after attachment of the disputed land under Section 146(1) of the Code, the Magistrate becomes functus officio and has no jurisdiction to continue and finally decide the proceeding under Section 145(6) of the Code. A contrary view has been expressed by some High Courts that the Magistrate is competent to continue proceeding and pass final order in such cases.

5. The question, in our opinion, appears to be no longer res Integra. We feel it not necessary to discuss the cases in which conflicting views were expressed, in view of the recent decision of the Supreme Court in Chandu Nayak v. Sitaram B. Nayak : 1978CriLJ356 . The Supreme Court, interpreted the scope and ambit of the provisions of Sections 145 and 146 of the Code, and briefly explained as to how the Magistrate is to proceed for disposing of the proceeding under Sections 145 and 146 of the Code, in which the disputed land is kept under attachment under Section 146(1) of the Code, after making the preliminary order under Section 145(1) of the Code. The case, in our view, has set at rest the controversy on this question of law above.

6. In that case, the Magistrate passed a preliminary order under Section 145(1) of the Code after he had asked the parties to appear before him and put in their respective written statements. On the same day, however, he attached the disputed land under Section 146(1) of the Code, After the parties had put in their written statements, the case was heard by the Magistrate from time to time, While the case was pending before him, an Act called the 'Maharashtra Vacant Land (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975, was enacted. This Act was deemed to have come into force in which area the disputed land was situated. The Act was passed to prohibit unauthorised occupation of vacant land in the urban areas in the State of Maharashtra and to provide for summary eviction of persons from such lands. Section 8 of the Act provides for bar of jurisdiction of Courts for eviction of persons in unauthorised occupation of vacant land falling within the description of lands under the Act. The Magistrate took the view that in view of Section 8 of the Code, he has ceased to have jurisdiction to proceed with the case, and as such the proceeding stood abated, He accordingly dropped the proceeding abruptly without passing the final order under Section 145(6) of the Code. On revision, the Bombay High Court agreed with the view taken by the Magistrate and dismissed the revision. The party aggrieved by the order of the High Court came up before the Supreme Court by special leave. The Supreme Court allowed the appeal, holding that the case did not abate. The Supreme Court further held that the proceeding was to be disposed of by the Magistrate in accordance with the provisions of law contained in Sections 145 and 146 of the Code, and observed at p. 335 (of AIR) : (at p. 358 of Cri LJ) as follows:

The Magistrate, in the first instance will try to conclude the proceeding in accordance with the various provisions of Section 145 of the Code. If he is able to declare the possession of either party on consideration of the evidence adduced or to be adduced before him he would do so. In that event the other party will be forbidden from creating any disturbance of the possession (including the deemed possession, in case the application of the proviso to Sub-section (4) is found necessary) of the party declared in possession. The Magistrate, then, will have to withdraw the attachment in accordance with the proviso to Sub-section (1) of Section 146, because, as per his order declaring a party in possession there would be no longer any likelihood of the breach of the peace with regard to the subject of dispute, The party not found in possession by the Magistrate will have to seek the redress of his grievance, if any, elsewhere, If, however, the Magistrate decides that none of the parties was in possession of the disputed property on the date of the order made under Sub-section (1) of Section 145 or if he is unable to satisfy himself as to which of them was then in possession of the subject of dispute he need not lift the attachment until a competent Court had determined the rights of the parties as provided for in Section 146(1). In such a situation recourse, if necessary, may be taken to Sub-section (2) of Section 146 of the Code either by the Magistrate or a Civil Court, as the case may be.

7. In view of the pronouncement above by the Supreme Court, in our opinion, the view taken in some cases that the Magistrate has no jurisdiction to continue and finally decide the proceeding under Section 145(6) after he has attached the land under Section 146(1) of the Code can no longer prevail.

8. There can be no doubt that in substance and in effect a proceeding under Section 145 of the Code, as pointed out, by the Supreme Court in that case, is primarily concerned with the prevention of the breach of the peace by declaring the party found in possession to be entitled to remain in possession until evicted therefrom in due course of law. The provisions of Sections 145 and 146 of the Code are intended to achieve the purpose above. Sections 145 and 146 of the Code, which operate in the same field are to be read harmoniously to achieve the object which is paramount in such a proceeding. Because of this, the Magistrate is invested with jurisdiction to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of the peace with regard to the subject-matter of the dispute. Even after attachment, the Magistrate, therefore, in the first instance, is to try to conclude the proceeding in accordance with the provisions of Section 145 of the Code. In case he is able to declare possession of either party on a consideration of the materials before him, he would do so, and in that event he is to pass final order under Section 145(6) of the Code. The Magistrate, then, will have to withdraw the attachment in accordance with the proviso to Sub-section (1) of Section 146 of the Code.

9. We, accordingly, answer the question in the affirmative and hold that the Magistrate does not become functus officio; he has jurisdiction to continue and finally decide the proceeding under Section 145(6) of the Code, even after attachment of the disputed land under Section 116(1) of the Code, considering the case to be one of emergency.

10. Turning to the merits in both the cases, in view of our decision above, the Impugned orders of the learned Sessions Judge and Additional Sessions Judge cannot stand. In Criminal Revn. No. 9 of 1976 in the course of the hearing, it was stated at the bar that the petitioner before us, who was the first party in that proceeding, has filed a suit while revision is pending before this Court, for declaration of the right that he was entitled to be in possession of the disputed land. Learned Counsel appearing for the petitioner submits before us that there is no bar to the further proceeding of the case under Section 145, Cr. P.C., even though a suit is pending before Civil Court, in the circumstances of the case. It was also urged that no notice was given to the petitioner by the learned Sessions Judge and that the revision was disposed of without hearing him, in violation of the principles of natural justice, We do not consider it necessary to decide the other questions urged before us, and leave those questions open.

11. In the result, both the revisions are accepted, and the impugned order of the learned Sessions Judge, Manipur and that of the Additional Sessions Judge, Manipur, are set aside. Criminal Case No. 9 of 1976 is remanded to the learned Sessions Judge, Manipur, and the Criminal Revn. No. 3 of 1976 is also remanded to the learned Additional Sessions Judge, Manipur; they are directed to dispose of the same in accordance with law on merits.

Baharul Islam, Actg. C.J.

12. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //